TRIPS Waiver for COVID-19 Vaccine: RSTV- Big Picture

TRIPS Waiver for COVID-19 Vaccine:- Download PDF Here

Anchor:

Vishal Dahiya

Participants:

Leena Menghaney, Regional Head, South Asia Access Campaign, MSF.

Jayant Dasgupta, Former Ambassador, WTO.

Context:

The proposal of TRIPS waivers for manufacturing of Covid-19 vaccines.

TRIPS Agreement:

• The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is the most comprehensive multilateral agreement on intellectual property (IP).
• It came into force in January 1995 with the creation of the World Trade Organization (WTO). It deals with the various protections given to Intellectual Property Rights (IPRs).
• It plays a central role in facilitating trade in knowledge and creativity, in resolving trade disputes over IP. It frames the IP system in terms of innovation, technology transfer, and public welfare. 
• Patents, copyrights, trademarks, etc. are some of the examples of Intellectual property.
• As far as patents are concerned, the Indian Patents Act, 1970 deals with the issues of patents in India. 
• Countries that are members of WTO have to frame their IP acts in accordance with the TRIPS agreement.
• India has enacted the IP acts in conformity with the TRIPS agreement in the 1990s and in terms of patents, the last amendment was carried out in December 2004.

TRIPS Council:

• The Council for TRIPS (“TRIPS Council”) is the body legally responsible for administering and monitoring the operation of the TRIPS Agreement.
• In its regular meetings, the TRIPS Council serves as a forum for discussion between members on key issues. It is open to all WTO members and observers.

Compulsory licensing and TRIPS flexibilities:

• In 2001, the WTO signed the Doha Declaration, which clarified that in a public health emergency, governments could compel companies to license their patents to manufacturers, even if they did not think the offered price was acceptable. 
• This provision, commonly referred to as “compulsory licensing”, was already built into the TRIPS Agreement and the Doha declaration only clarified its usage.
• Under Article 27(2) of the TRIPS agreement, WTO member countries may exclude the patentability of inventions that are necessary to protect public health. 
• Article 30 allows members to place limited exceptions to the rights conferred by a patent. This, along with a set of other tools known as the “TRIPS flexibilities”, allow governments to waive IP rights in the interest of public health. 
• Under Section 92 of the 1970 Indian Patents Act, the central government has the power to allow compulsory licenses to be issued at any time in case of a national emergency or circumstances of extreme urgency.
• India and South Africa’s current proposal seeks greater flexibilities than those provided in the TRIPS Agreement. The vaccine manufacturing process is complex and exercising flexibilities on patents will be insufficient to enhance production. It will require relaxation on other forms of intellectual property as well just like India has proposed at the WTO.

What is the TRIPS waiver for COVID-19 vaccines?

• The TRIPS waiver refers to a proposal, advanced by the governments of South Africa and India, to the World Trade Organization to waive intellectual property rights protection for technologies needed to prevent, contain, or treat COVID-19 until widespread vaccination is in place globally, and the majority of the world’s population has developed immunity.
• In October 2020, India and South Africa had approached the World Trade Organization (WTO) seeking a waiver on intellectual property rights on Covid-related innovations to enhance access to tests, drugs, and vaccines. 
• Now, a revised proposal has been submitted in the second half of May. The revised proposal aims to increase global access to several crucial medical products to help countries tackle more effectively the contagious virus with affordable and accessible tools.
• India is among 62 World Trade Organization (WTO) members that are pushing this draft, which limits the waiver period to three years, with a provision to review the duration.
• TRIPS waiver will accelerate scaling up some COVID-19 vaccines where the untapped capacity for vaccine production still exists, and it may also encourage existing vaccine producers to step up their technology transfer efforts.

Supporters and Oppositions to this draft:

• Most developing countries have supported the proposal.
• The US has also given its weight behind the TRIPS waiver, but only on the vaccine and not on other medical equipment and medicines. European Union is also considering the proposal.
• However, some developed countries, including Japan and the UK, have opposed the move. 
• Multinational pharmaceutical companies have also opposed this draft because they fear losing their market share and revenue earned on vaccines and medicines as well.

How will the TRIPS waiver help India?

• India, unlike other developing countries, is blessed with efficient vaccine manufacturing capabilities.
• India is already producing vaccines and is in the process of giving licenses to other manufacturers to produce vaccines in India. In the coming days, vaccine availability will be increased. Hence, patent relaxation under TRIPS will not be of any use as far as vaccines are concerned. 
• However, if the waiver is being granted for medicines and other medical equipment, then it will help India in tackling covid related complexities as well as other diseases arising out of it such as black fungus.

Way Forward:

• Text-based negotiations over the proposal are yet to begin in WTO. As decisions are taken by consensus, it may delay an effective decision on the said proposal.
• The WTO should discuss this proposal and work in a positive direction as early as possible considering the danger of the COVID pandemic which has impacted both developed and developing countries.
• The proposal should also extend to other medical equipment such as medicines, PPE kits, etc.
• Almost all developing countries have supported the proposal. However, they should co-sponsor the proposal to fast-track it.

Conclusion:

Handling HIV-AIDS took 20 years, mainly due to complexities involved in compulsory licensing and challenging patents associated with drugs concerned with this. This cannot be repeated in the case of the COVID pandemic, given the havoc it has wrecked on life and the economy across the world. All countries and other stakeholders should collaborate to fight the pandemic at the earliest.